Ellerbe v. State ( 2004 )

THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(D)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Coleman Ellerbe, Appellant,

v.

State of South Carolina, Respondent.

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Appeal From Marlboro County
J. Michael Baxley, Circuit Court Judge

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Unpublished Opinion No. 2004-UP-644
Submitted December 1, 2004 – Filed December 21, 2004

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AFFIRMED

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Assistant Appellate Defender Robert M. Pachak, Office of Appellate Defense, of Columbia, for Appellant.

Attorney General Henry Dargan McMaster, Chief Deputy Attorney General John W. McIntosh, Assistant Deputy Attorney General Salley W. Elliott, Assistant Attorney General Christopher L. Newton, all of Columbia, for Respondent.

PER CURIAM:  Coleman Ellerbe appeals the dismissal of his petition for a writ of habeas corpus, arguing that, since his petition failed to expressly allege he exhausted all state administrative remedies, the circuit court was required to treat the petition as an application for post-conviction relief (PCR).  We affirm. [1]

FACTS

In September 1988, Appellant pled guilty to murder and was sentenced to life imprisonment.  In 1995, Appellant filed an application for PCR.  Following a hearing in March 1996, the application was dismissed.  In 1999, Appellant filed a petition for a writ of habeas corpus in the circuit court, claiming his trial attorney induced him into pleading guilty by promising him a reduction in his sentence due to the absence of a prior criminal record. 

The circuit court dismissed Appellant’s petition on two grounds. First, the court concluded that, because Appellant failed to allege he had exhausted all available PCR remedies, the petition was improper.  Second, the court found Appellant’s claims were cognizable under the Uniform Post Conviction Procedure Act, S.C. Code Ann. §§ 17-27-10 to –120 (2003), and thus may not be raised in a petition for habeas corpus. This appeal followed.

LAW / ANALYSIS

Upon enactment in 1966, the Uniform Post Conviction Procedure Act largely superseded and encompassed the habeas corpus procedure provided by statute.  See S.C. Code Ann. §§ 17-27-10 to –120 (2003); Gibson v. State, 329 S.C. 37, 41, 495 S.E.2d 426, 428 (1998). Although habeas corpus continues to be available as a constitutional remedy, it is available only when other remedies, such as PCR, are inadequate or unavailable. See S.C. Const. art. 1, § 18; Gibson, 329 S.C. at 41, 495 S.E.2d at 428.  As such, “a matter which is cognizable under the Act may not be raised by a petition for a writ of habeas corpus before the circuit or other lower courts.”  Simpson v. State, 329 S.C. 43, 46, 495 S.E.2d 429, 431 (1998). Furthermore, the Act is “broadly inclusive and will rarely be inadequate or unavailable to test the legality of [a] detention.”  Gibson, 329 S.C. at 41, 495 S.E.2d at 428; see also Simpson, 329 S.C. at 45-47, 495 S.E.2d at 430-31.

Because Appellant’s petition alleges that he was convicted in violation of the constitution, his claim is obviously cognizable under the Act; thus, Appellant is procedurally barred from petitioning the circuit court for a writ of habeas corpus.  See S.C. Code Ann. § 17-27-20(a)(1) (2003); Keeler v. Mauney, 330 S.C. 568, 571, 500 S.E.2d 123, 124 (Ct. App. 1998).  “If a person is procedurally barred, his only means of obtaining state habeas corpus relief is to file a petition in the original jurisdiction of the Supreme Court.”  Keeler, 330 S.C. at 571, 500 S.E.2d at 124. The trial court properly dismissed Appellant’s petition on this ground.

Appellant correctly asserts that if a petition for a writ of habeas corpus fails to allege that PCR remedies are unavailable, inadequate, or have previously been exhausted, the petition should be treated as a PCR application.  Gibson, 329 S.C. at 42, 495 S.E.2d at 428.   In his petition, Appellant mentioned, albeit vaguely, the dismissal of his previous PCR application.  Thus, the trial court’s determination that Appellant had not alleged exhaustion of available PCR remedies could be construed as an erroneous finding.  However, as stated above, the trial court dismissed the petition on proper grounds in its additional ruling.  Moreover, had the action been treated as a PCR application, as Appellant now requests, it would have been similarly dismissed as time barred pursuant to the PCR statute of limitations.  See S.C. Code Ann. § 17-27-45(A) (2003).

For the foregoing reasons, the trial court’s ruling is

AFFIRMED.

HEARN, CJ., GOOLSBY and WILLIAMS, JJ., concur.

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[1] We decide this case without oral argument pursuant to Rule 215, SCACR.